DEC-S2013-013

The Equality Tribunal

Equal Status Acts 2000-2012

Decision: DEC-S2013-013

A Student

V

A Third Level College

File Reference: ES/2012/131

Date of Issue: 28th November 2013

Key Words: Equal Status Acts, 2000 –2012 - Direct discrimination, Section 3(1), Section 3(2)(g) – disability, less favourable treatment , educational establishment - section 7(1), , Section 3(2)(j) – victimisation, Section 4 - reasonable accommodation

Delegation under Equal Status Acts, 2000-2012

The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2012 on the 24th of September 2012. On the 8th July 2013, in accordance with his powers under section 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 18th October 2013.

1. Dispute

1.1 The dispute concerns claims by the complainant that she was discriminated against by the above named respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g), contrary to Section 7 of the Equal Status Act, 2000-2012 in relation to completing her degree. She claims that the respondent failed to provide reasonable accommodation in terms of Section 4 and that she was victimised in terms of Section 3(1)(j) of the Acts.

2. Summary of the Complainant's

2.1 The complainant said that she suffers from anxiety and depression and other medical problems. She registered as a BESS student in the respondent college for the academic year 2006/2007. At end of year examinations she could only sit one examination subject due to the fact that her sister was getting married in England and she was also feeling unwell. She did not sit the supplemental examinations in the Autumn for medical reasons. She repeated the year in 2007/2008 but she was unable to sit any examinations that year because she was ill and needed a bladder operation. She was again allowed to repeat the year in 2008/2009. She had 5 outstanding exams to complete having been allowed to carry the subject (Organisation & Management) she passed in 2007. At the Summer 2009 examinations she passed 3of the subjects and failed Introduction to Economics and due to illness was unable to sit the Maths and Statistics subject. She sat the Maths and Statistics in the supplemental examination and failed it. She said that she was allowed to go off books for the academic year 2009/2010 to repeat these examination subjects in 2010. She said that there was a disagreement with her lecturer as to which syllabus the examinations would be based on. For this reason she said that she did not sit any of these examinations in 2010 either in the Summer or Autumn sessions. She submitted that in addition to the problem with the syllabus she also had medical and family problems which prevented her from sitting the examinations. She said that she sought to go off books for the academic year 2010/2011 and repeat the examinations but she has not been allowed to do so.

2.2 The complainant said that she applied as a mature student both through the CAO and the respondent college for a place in BESS and two other courses for the academic year 2010/2011 and she was not successful. She said that she was turned down without any consideration been given to her applications. She submits she has been discriminated against on the disability ground because she was neither allowed to continue with her BESS course or to start it again or to do another similar course.

3. Summary of the Respondent's Case.

3.1 The respondent denies that the complainant was discriminated against on the disability ground. It was submitted that the complainant entered Junior Freshman year in the academic year 2006/2007 to study Business Economics, Political Science and Sociology (BESS). The complainant sat one examination, Introduction to Management, having in March 2008 sought through her tutor for permission to withdraw from the annual examination and to defer the remaining examinations until the supplemental examinations in the Autumn. However the complainant did not sit the supplemental examinations for medical reasons.

3.2 The complainant was then granted permission by the Senior Lecturer to repeat the year in 2007/08 and because it was for medical reasons she was granted free fees. She was also granted permission to carry over the module she had completed even though students are not normally allowed to do so when repeating a year.

In May 2008 a request was made by the complainant’s Senior Tutor on behalf of the complainant for permission to withdraw from the annual examinations in 2008 for medical reasons. The request was granted by the Senior Lecturer. The complainant had five examinations to complete in the Autumn 2008 examination session and she did not sit any of them for medical reasons. The complainant then sought to repeat the Junior Freshman year for a second year in the academic year 2008/09 on medical grounds. Permission of the University Council was required under the General Regulations. It was sought and the complainant was given permission to repeat the year. She also qualified for free fees because she was repeating on medical grounds.

The complainant passed 3 subjects at the annual exam session in 2009 and she failed Economics. She also had been permitted to defer Mathematics and Statistics to the Autumn supplemental session for medical reasons. She sat this subject in the Autumn and failed it and now she had two failed subjects which were non-compensatable.

3.3 The complainant then sought to take the failed modules on an “off-books” basis for the academic year 2009/2010. The matter was referred to the appeal system and the Court of First Appeal and she was granted permission to go “off-books” to repeat the failed modules. The Senior Lecturer had to approve the decision and she refused. Due to an administrative error the complainant was informed she could go off-books and sit the examinations and she was allowed to do so. The complainant did not sit the two failed subjects at the annual examination session due to medical reasons. She was permitted to sit the examinations at the Autumn session in 2010 and she failed to do so. The Court of Examiners marked her results as “Exclude”. The complainant then requested the Senior Lecturer through her Senior Tutor to go “off books” for the academic year 2010/2011. In an email response the Senior Lecturer refused the request. She said that she had given detailed consideration to the matter and noted that the complainant had been on the course since 2006/2007 academic year and if she granted the request it would mean that the complainant was still only commencing her Junior Freshman year 6 years since she first registered for the course. She said that she did not consider it in the complainant’s best interest to and continue go off books for another year and recommended that she should be excluded from the course.

3.4 It was submitted that the respondent went to great lengths to accommodate the complainant and to assist her in passing her Junior Freshman in BESS. The College Regulations provide at 57 H14:

“Students may not repeat any academic year more than once and may not repeat more than two academic years, except by special permission of the University Council.”

It was submitted that the complainant had three attempts to complete the year. She was also permitted to carry forward a result from 2006/07 across the repeat years which is not standard practice when students are repeating a year.

Following her exclusion from the College she applied as a mature for 3 different courses including BESS and she was not shortlisted for interview for any of these courses. The respondent submitted that the applications were assessed independently by two staff members of the faculty against set criteria. The applicants were awarded marks and based on each person’s score they made a recommendation on whether to call that applicant for interview. The staff who rejected the complainant’s applications did not know her. The respondent stated that if she was selected for interview she would have been interviewed. Her non-selection had nothing to do with the fact she had already been doing BESS.

4. Conclusions of the Equality Officer

4.1 Time Limit Issues

Section 21 of the Acts sets out the time limits in respect of a referral to the Director as follows:

“(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,”

………

“(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.”

4.2 The respondent submitted that the complaint is time-barred. The decision to exclude the complainant from the College was made in September 2010. The complainant appealed the decision and in an email of the 23rd of February 2011 from her Senior Tutor, the complainant was informed that the Senior Lecturer was not allowing her to sit the outstanding examinations that she had failed to complete. The complainant was also notified in April 2011 that her applications for three different degree courses were unsuccessful. It was submitted that the complainant notified the respondent of her complaint of discrimination under Section 22 of the Acts on the 26th of June 2012 which is over a year outside the statutory period for making such a notification. In addition the complaint was referred to the Equality Tribunal on the 24th of September 2012 which is outside the statutory time frame. The respondent’s representative stated that the complainant could not rely on a letter of response from the respondent to a letter from the complainant’s solicitor dated the 25th of May 2012 in order to bring her complaint within the statutory time limits.

4.3 It is the complainant’s case that it was the Disability Officer who notified her that she was excluded from the college in January 2011and then she received an email in February 2011 confirming the decision. She said that she tried to appeal this decision and had spoken to several people both in the fees office and the BESS office. She said that she wrote to the Provost on the 10th of June 2011 about the fact that she could not sit the two outstanding subjects and that she had been marked withdrawn from college. She received a response from the Provost Office dated 8th July 2011. She then wrote to the new Provost telling him that she wished to return to the respondent College to complete her studies and advising him that she would have no option but to take legal action if her application was not successful. She received no reply. She contacted a solicitor who wrote to the college on her behalf on the 16th of April 2012 and received a response dated 26th of April 2012. Further letters passed between the parties resting with the final letter of the 25th of May 2012 from the respondent’s solicitor

4.4 I note that the complainant was notified by her Senior Tutor on the 23rd of February 2011 that she could not repeat her examinations again. I also note that she was in constant contact with the respondent trying to reverse the decision from that date onwards. She then contacted a solicitor who wrote to the respondent and received a response letter from the respondent’s solicitor on the 30th of April 2012, confirming the decision to refuse her permission to continue with the course because she had failed to complete the first year examinations. I am satisfied that this is the last occurrence of the alleged prohibited conduct. This was the date that the complainant was left in no doubt that she could not continue to repeat. Therefore the latest date for notifying the respondent of the prohibited conduct, in accordance with Section 21 of the Acts, was the 29th of June 2012 and the notification was received by the respondent on the 26th of June 2012. The latest date for referring the case to the Director was the 29th of October 2012 and the referral was received on the 24th of September 2012. I find therefore that the complainant has complied with the statutory time limits and I have jurisdiction to hear the complaint.

4.5 The matter referred for investigation was whether or not the complainant was discriminated against on the disability and race ground in relation to the completion of a degree in the respondent’s college in terms of section 7 the Equal Status Acts. In reaching my decision I have taken into account all the written submissions made to me by the parties in the course of my investigation into the complaint.

Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:

3.—“(1) For the purposes of this Act, discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

Section 3(2)(g) provides: "(g) that one is a person with a disability and the other

either is not or is a person with a different disability (the ‘‘disability ground’’),

Section 7 provides:

“In this section ‘‘educational establishment’’ means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.

(2) An educational establishment shall not discriminate in relation to—

(a) the admission or the terms or conditions of admission of a person as a student to the establishment,

(b) the access of a student to any course, facility or benefit provided by the establishment,

(c) any other term or condition of participation in the establishment by a student, or

(d) the expulsion of a student from the establishment or any other sanction against the student.

4.6 Section 38A (1) provides that the burden of proof is:

"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

4.7 The complainant’s case is that she has a disability and she was refused permission to go off books for the year 2010/2011 in order to complete her first year examinations in two subjects and she believes that this was discriminatory on the disability ground. She also submits that she was discriminated against when she made a fresh application to the college in the academic year 2011/2012 for BESS and two other courses and she failed to get a place. The respondent denies that the complainant was discriminated against on the disability ground and submits that the complainant started the BESS programme in the academic year 2006/2007 and was allowed to repeat the year three times on medical grounds. It was decided in 2010 because she had failed to complete the Junior Freshman 1st year, it would not be in her best interest to continue with the course and therefore she was excluded for these reasons.

4.8 I can find no evidence that the respondent treated the complainant in a discriminatory manner. She was given every opportunity from 2007 to 2010 to complete her junior freshman 1st year, and for reasons mainly connected to her disability, the complainant was unable to repeat the examinations in the 2 outstanding subjects (Math and Statistics and Economics). I note the respondents General Regulations and Information states under the heading Academic progress at 57 H14:

“Students may not repeat any academic year more than once and may not repeat more than two academic years, except by special permission of the University Council.”

It is very clear from the above that a student cannot repeat an academic year more than once. However the complainant was allowed to repeat the academic years 2007/2008, 2008/2009 and when she was unable to complete/pass all the first years examinations at the end of 2009 she was granted permission to go “off books” and sit the 2 examinations which she had not completed in the Summer of 2010 and when she was unable for medical reasons to sit the examinations she was allowed to defer taking the examinations to the Autumn of 2010. I am satisfied that the complainant was not treated less favourably than a student who did not have a disability and who either failed an examination or failed to complete all the subjects in an academic year; it is clear from the regulations that such a student could only repeat the year once. I find therefore that the complainant has failed to establish a prima facie case of discriminatory treatment on the disability ground.

4.9 I will also consider whether the respondent provide the complainant with reasonable accommodation. While in her referral for redress the complainant did not specifically say that the respondent failed to provide her with reasonable accommodation. However she submitted that there was an obligation on the College to continue to allow her to repeat because she was certified with an illness and for this reason the College should not have excluded her.

Section 4 of the Equal Status Act provides that, inter alia:

“(1) For the purposes of this Act discrimination includes a refusal or failure

by the provider of a service to do all that is reasonable to accommodate the

needs of a person with a disability by providing special treatment or facilities,

if without such special treatment or facilities it would be impossible or unduly

difficult for the person to avail himself or herself of the service.

The special treatment or facility that the complainant was seeking from the College was either to be allowed to return to repeat first year for the fourth time in order to complete her first year examinations or to start first year BESS programme from scratch. It is clear that the respondent provided special treatment to the complainant over a four year period by allowing her to repeat examinations on medical grounds during all the examination sessions in this period. The fact the she was not called for interview when she made a fresh application had nothing to do with her disability; she was evaluated against a set criteria and was not selected for interview because she did not score high enough. I am satisfied that the respondent did everything possible to assist the complainant to progress beyond first year. There is no obligation on the respondent under Section 4 to continue to provide special treatment by allowing her to repeat the year. It is my view that the assistance given to the complainant was commendable. I find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to this aspect of her complaint.

4.10 The next matter I have to consider is whether the complainant was victimised in that she states that her applications as a mature student for 3 courses including BESS were not given consideration by the college. The complainant also submitted that the marks in one of the subject she had passed were reduced by 10%. Section 3(2)(j) of the Acts defines victimisation as

“(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ‘‘victimisation ground’’)”.

Having regard to the evidence adduced, I find that I have not been presented with any evidence from which I could conclude that the complainant has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.

5 Decision

5.1 I find:

(i) that the complainant was not discriminated against on the disability ground pursuant to Section 7 of the Acts;

(ii) that the complainant was provided with reasonable accommodation pursuant to Section 4 of the Acts;

(iii) that the respondent did not victimise the complainant pursuant to sections 3(1) and 3(2)(j) of the Acts.

_________________

Marian Duffy

Equality Officer

28th November 2013